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Orissa High Court · body

2022 DIGILAW 165 (ORI)

Artatran Behera v. State of Odisha

2022-05-16

S.K.PANIGRAHI

body2022
JUDGMENT : S.K. Panigrahi, J. 1. In both the writ petitions filed herein, the petitioners have challenged the action of the opposite parties in not extending the benefits of age relaxation in terms of the Odisha Civil Service (Fixation of Upper Age Limit) Amendment Rules, 2022 while submitting the online application forms for the post of Odisha Education Service Officers in Group-B under School and Mass Education Department. 2. The present petitioners are serving as Assistant Teachers in Secondary Schools and they eminently satisfy the eligibility criteria in terms of the educational qualification prescribed in the advertisement No.15 of 2021-22 issued by the Odisha Public Service Commission (hereinafter referred to as “the OPSC” for brevity). However, they failed to apply online due to fixation of upper age limit to 32 years. Therefore, the present petitioners along with other similarly situated aspirants who are at present serving under School and Mass Education Department had filed a Writ Petition bearing W.P.(C) No.38527/2021 challenging the very same advertisement on the ground of relaxation of upper age limit and praying for a direction to the Opp. Parties for relaxation of upper age limit. In fact, after an interval of 8 years, the advertisement for the post of Odisha Education Service Officers in Group-B has heralded a new hope for the petitioners. In the said Writ Petition, this Court while disposing of the Writ Petition vide order dated 08.12.2021 has directed to make individual representation afresh before the authority enclosing the copies of the documents sought to be relied upon by the petitioners for consideration of their grievances. The appropriate authority on receipt of such representation (s) along with the certified copy of the order passed by this Court, was directed to consider the same and dispose of as per law, as expeditiously as possible preferably within a period of four months from the date of communication of that order. 3. The appropriate authority on receipt of such representation (s) along with the certified copy of the order passed by this Court, was directed to consider the same and dispose of as per law, as expeditiously as possible preferably within a period of four months from the date of communication of that order. 3. While the matter stood thus, the General Administration & Public Grievance Department, Government of Odisha (hereinafter referred to as “the GA Department” for brevity) was pleased to amend the Odisha Civil Service (Fixation of Upper Age Limit) Rules, 1989 (hereinafter referred to as “the Rules” for brevity), namely, Odisha Civil Service (Fixation of Upper Age Limit) Amendment Rules, 2022 (hereinafter referred to as “the Amendment Rules” for brevity) vide Notification dated 11th January 2022, wherein the proviso to Rule 2, the following proviso has been inserted namely : “Provided further that for advertisements made during calendar years 2021, 2022 and 2023, the said upper age limit shall be thirty-eight years.” After such amendment, the petitioners became eligible to apply for the post of Odisha Education Service Officers in Group-B but they were not allowed to make online applications due to the clarification letter dated 12.01.2022 issued by the GA Department, wherein it has been requested to the Secretaries of OPSC, OSSC and OSSSC to take action in accordance with the innate spirit the clarification as follows: “It is therefore clarified that this notification shall be applicable in those cases where the last date of application for recruitment to any post as per the advertisement issued is still not over, as on the date of issue of this notification.” Despite the petitioners are squarely covered under the aforesaid amendment, they are being deprived of the opportunity to apply online applications for the post of Odisha Education Service Officers in Group-B. 4. Learned counsel for the petitioners humbly submitted that the clarification issued by the GA Department is contrary to the Amendment Rules. The GA department has no such authority to interpret the Amended Rules, wherein it has been specifically mentioned that the upper age limit shall be 38 years for the advertisements made during the calendar years 2021, 2022 and 2023. Therefore, the action of the GA Department in issuing the clarification dated 12.01.2022 is contrary to the Amended Rules. 5. The GA department has no such authority to interpret the Amended Rules, wherein it has been specifically mentioned that the upper age limit shall be 38 years for the advertisements made during the calendar years 2021, 2022 and 2023. Therefore, the action of the GA Department in issuing the clarification dated 12.01.2022 is contrary to the Amended Rules. 5. It is also submitted that only on the basis of such letter, the applications of the petitioners are not being entertained as they have crossed the upper age limit on the last date of submission of the application pursuant to the above Advertisement No. 15/2021-2022. Therefore, the action of the opposite parties in not entertaining the applications of the petitioners is illegal. 6. Till today, no corrigendum has been issued by the opposite parties particularly by the OPSC while molding in terms of the aforesaid Amended Rules though the amendment was notified on 11.01.2022. The action of the opposite parties in not framing any provision in terms of the Amended Rules is san any law. It was further submitted that after the Amended Rules made the scene by virtue of the Notification dated 11.01.2022. The petitioners requested before the OPSC to allow them to apply in terms of the amended provisions of the Amendment Rules. However, the OPSC referring to the letter of the GA Department dated 12.01.2022 refused to accept the hard copy applications of the petitioners. 7. The petitioners finding no other alternative have submitted their applications along with copy of the notification dated 11.01.2022 requesting the Opposite Party No. 2-OPSC to accept the same but no action has been taken till date. So far as the petitioners in W.P.(C) No.4154 of 2022 are concerned, they belongs to their respective reserve categories and, therefore, they are eligible to get 5 years of age relaxation in the upper age limit as per Clause-3 of the Advertisement. Hence, in view of the amended provisions of the Rules, all the petitioners become eligible in terms of the Advertisement and their candidatures ought to have been considered pursuant to the Advertisement No.15 of 2021-22 read with amended provisions of the Amendment Rules. 8. Learned Additional Government Advocate for the State submitted that the intention of such an amendment was to enhance the upper age limit to 38 years where the last date for submission of application was not over. 8. Learned Additional Government Advocate for the State submitted that the intention of such an amendment was to enhance the upper age limit to 38 years where the last date for submission of application was not over. As the same was not mentioned in the above said amendment, question arises as to whether the above said amendment is to be made applicable to the cases where the last date for application was not over on the date of commencement of the above said Amendment Rules or also to be made applicable where the last date for submission of application is already over and the recruitment process has started. Considering the above said ambiguity and in order to infuse clarity on the issue, the Odisha Civil Service (Fixation of Upper Age Limit) Second Amendment Rules 2022 was made limiting the applicability of the Odisha Civil Service (Fixation of Upper Age Limit) Amendment Rules 2022 to the cases where the last date for submission of application is still not over on the date of commencement of the above said Amendment Rules of 2022. 9. It was also submitted that after issuance of the aforesaid clarification dated 12.01.2022, a further amendment was made vide Notification dated 15.01.2022, which has also been notified in Extraordinary Odisha Gazette on the same date i.e. on 15.01.2022, of the GA Department namely, Odisha Civil Service (Fixation of Upper Age Limit) Second Amendment Rules 2022, wherein at para-2 it has been mentioned that in the Odisha Civil Service (Fixation of Upper Age Limit) Amendment Rules 1989, after the second proviso to Rule-2, the following proviso shall be inserted and be read as follows: "Provided also that upper age limit as so fixed in the second proviso shall be applicable to those cases where the last date of application for recruitment to any post as per the advertisement issued is still not over as on the date of commencement of the Odisha Civil Service (Fixation of Upper Age Limit) Amendment Rules 2022." 10. It was further submitted that in view of the said Notification dated 15.01.2022 the Odisha Civil Service (Fixation of Upper Age Limit) Amendment Rules 2022 which can be applicative, where the last date for application for recruitment in any posts as per the Advertisement issued is still not over as on the date of commencement of the Odisha Civil Service (Fixation of Upper Age Limit) Amendment Rules 2022, the clarification dated 12.01.2022 is not in conflict with the statutory rules and accordingly does not suffer from any illegality or infirmity. 11. Heard learned counsel for the parties. 12. The last date for submission of online registered applications in the website was 18.12.2021 (11:59 P.M.). Admittedly, the petitioners were already overaged on the date of submission of the application. As a result, the OnLine portal did not accept the application of the petitioners. However, in view of the Court order passed in W.P.(C) No. 38527 of 2021 which only directed the Opposite Party No.2 to consider the grievances of the Petitioner which was never a positive order to allow them to participate in the recruitment process. The petitioners submitted their application in hard copies much after the last date of submission was over. Resultantly, the Opposite Party No.2 refused to accept the hard copies. In view of the above discussion, it is a no-brainer that it was the prerogative of the Opposite Party No.2 to accept or refuse the hard copies of the petitioner and to allow them to participate in the selection process as per law. But, there is no obfuscation in the decision of the Opposite Party No.2 which is decidedly law oriented and can’t be subverted on any ground of misplaced sympathy to some petitioners. 13. The clarification in the amendment rules, mentioned hereinabove keeps nothing under wraps to trigger any kind of controversy. There is also no room to misread the Government’s Notification regarding age relaxation to term it as inequitious. 14. The petitioners knew very well that they were overaged at the time of submission of application form and the notification of age relaxation was not even notified then. They were knowingly blind to the facts and harping on the issues leading to unnecessary wasting the valuable time of the Court. 14. The petitioners knew very well that they were overaged at the time of submission of application form and the notification of age relaxation was not even notified then. They were knowingly blind to the facts and harping on the issues leading to unnecessary wasting the valuable time of the Court. But the petitioners had applied through hard copies after the closing date of submission of online registered applications which is apparent from the postal receipts filed by the petitioners. This itself unsuits the petitioners to participate in the selection process. 15. In such view of the matter, the petitioners cannot be granted relief of the relaxation of age limit in terms of the present advertisement. They can claim such relaxation in other advertisement where the last date of application is not over. 16. Accordingly, both the Writ Petitions are dismissed.